Opinion
A126872
09-22-2011
THE PEOPLE, Plaintiff and Respondent, v. HECTOR JOSE SANCHEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. 05-080449-2)
I. INTRODUCTION
Hector Jose Sanchez was sentenced to a 15-year prison term for multiple offenses related to several bank robberies that were committed in Contra Costa County between December 2004 and June 2006. The sole issue in this appeal from the judgment is whether the trial court erred by denying Sanchez's motion to suppress evidence. (Pen. Code, § 1538.5.) Finding no such error, we affirm.
II. STATEMENT OF FACTS
In light of the basis of this appeal, we confine our factual statement to the evidence presented at the suppression hearing.
A. The Prosecution's Evidence
In August 2006, the Contra Costa Housing Authority owned the El Pueblo Housing Development (the Development). The Housing Authority had a contract with the City of Pittsburg to provide police services at the Development which was a high crime area, known for drug related crimes, robberies, burglaries, shootings and homicides.
On the evening of August 23, 2006, Police Officer Gerald Lombardi was on duty at the Development. For the previous year, Lombardi's sole assignment was to provide police services there. He was familiar with its residents and frequent visitors and had personal knowledge of the criminal activity in the area.
At approximately 11:30 p.m., Lombardi was sitting in his parked patrol car on El Pueblo Avenue, approximately 20 yards from the intersection of El Pueblo and Diane Avenue. Lombardi noticed Sanchez on Diane Avenue and watched him walk to the end of the street, stop at the intersection, look to his left, then to his right, where Lombardi's patrol car was parked, and then "immediately" turn around and walk southbound on Diane Avenue.
Lombardi, who did not recognize Sanchez as a resident or visitor of the Development, turned on his headlights and drove his patrol car to the corner of El Pueblo Avenue. He turned left on Diane Avenue, drove southbound for approximately 50 to 75 feet, and used his spot light to illuminate Sanchez's mid-section to determine whether Sanchez had anything in his hands. Then Lombardi stopped his vehicle and parked approximately 20 feet southeast of where Sanchez was walking on the sidewalk.
Lombardi moved the spotlight so it was directed at the lower part of Sanchez's body, took a flashlight and exited his car. He then walked over to Sanchez, who had stopped walking. Lombardi did not have his gun drawn or handcuffs out and he did not order Sanchez to stop or block his path. Although his flashlight was probably on, Lombardi did not recall ever pointing it at Sanchez. Lombardi asked Sanchez what he was doing, using a casual tone. Sanchez said that he was looking for a wallet that his child had dropped out of the car window approximately three hours earlier. Lombardi noticed that Sanchez did not have a flashlight and that he had not been looking at the ground as if searching for a wallet.
Lombardi asked Sanchez for his name, date of birth, identification, and whether he was on parole or probation. Sanchez gave his name and date of birth, said he was not on parole or probation and told Lombardi that his identification was in his wallet in his car. When Lombardi asked where the car was, Sanchez pointed to a black Camero that was parked on the south end of Diane Avenue, approximately 150 yards away.
At approximately 11:36 p.m., Lombardi ran Sanchez's name through dispatch. Then Lombardi continued to talk with Sanchez about why he was in the Development as he helped him look for the wallet. While awaiting a reply from dispatch, Lombardi asked whether Sanchez had anything illegal on his person and Sanchez said he did not. Lombardi asked Sanchez for permission to search his person, which Sanchez gave.
At approximately 11:44 p.m., dispatch informed Lombardi that Sanchez was on active probation "with a search and seizure clause." After another officer arrived at the scene, Lombardi searched Sanchez's car and found incriminating evidence, i.e., a considerable amount of contraband, which led to the charges in this case.
Lombardi testified that Sanchez may have been a bit nervous during their encounter, but he was not agitated. Sanchez never asked to leave or made any move to leave. Furthermore, Lombardi never told Sanchez he could not leave or took any personal item from him which would have prevented him from leaving.
During cross-examination, defense counsel asked whether there was a point when Lombardi's questioning became "clearly accusatory," and Lombardi testified that it did not. Lombardi acknowledged that he could not recall whether he used the word "trespass" when questioning Sanchez about why he was at the Development. Lombardi was sure, however, that he did not accuse Sanchez of trespassing. Lombardi did tell Sanchez that loitering was a criminal violation. B. The Defense Evidence
Sanchez testified that he went to the Development on the evening of August 23 to look for his wallet, which he realized was missing several hours earlier. Sanchez was not sure what had happened to the wallet, but his "theory" was that his young son had thrown it out the car window earlier that day. Sanchez acknowledged that he saw Lombardi's patrol car when he reached the intersection of Diane and El Pueblo, but he denied that he turned around in order to avoid the officer. Rather, Sanchez turned around because he knew that he had not driven past that intersection when he was at the Development earlier that day.
Sanchez testified that when Lombardi saw him, the officer "revved" his engine, drove onto Diane and "speeded up" and stopped right next to Sanchez. Then the officer shined a spotlight on Sanchez, exited his car and "commanded" Sanchez to "hold up." Lombardi asked Sanchez what he was doing there, and Sanchez told him his theory about the missing wallet. Then, Lombardi told Sanchez that he was trespassing on private property and violating the law. According to Sanchez, Lombardi's tone was accusatory and he acted as though Sanchez was breaking the law.
Then Lombardi asked Sanchez for his personal information, identification and whether he was on parole. Sanchez denied that he told Lombardi that his identification was in his car. But Sanchez admitted that he told Lombardi he was not on probation, although he denied any wrongful intent, explaining: "I was on court probation where I didn't have to report or didn't have to check in. They just let me get my normal daily life. So it kind of slipped my mind when he asked me the question because I been on probation like a year at that time and not checking in, so I simply forgot."
Sanchez testified that, after Lombardi asked for identification, "he asked me pretty much, do you mind if I search you? And I kind of just shrugged my shoulders." Sanchez testified that he cooperated with the search even though he thought it was "uncalled for." He also testified that he did not feel he was free to leave at any time during his encounter with the officer. C. The Trial Court's Ruling
After all the evidence was presented, the trial court shared its preliminary thoughts. The court stated it was "inclined" to find that a detention occurred and that there was a reasonable basis for the detention, "at least at the outset." However, the court was concerned with the length of time involved and questioned whether the 14 minutes that passed from the time of the "initial contact" until the defendant's probation status was verified was unreasonably long. The court suggested, however, that the defendant may have caused the delay by lying about his probation status. Therefore, the court requested further briefing on that issue.
At the continued hearing, the trial court denied the suppression motion. Referencing off the record discussions with counsel prior to the continued hearing, the court admitted that it went on the wrong "track" by focusing on whether the defendant's actions could justify an otherwise unreasonable delay. The court now believed that the defendant's conduct was only one of several factors to consider when assessing the reasonableness of the detention and concluded that the amount of time it took to ascertain probation status was not in fact unreasonable.
Sanchez's trial counsel responded to the court's ruling by focusing on the first part of the encounter. Counsel argued that Lombardi detained Sanchez in order to determine if he was trespassing but then had no legitimate reason to continue the detention after Sanchez provided an explanation for his presence. The trial court disagreed and denied the motion with the following explanation: "I think that the reason for the initial approach could be characterized as a trespass although probably a fairer description of the officer's state of mind is that he saw someone he didn't recognize acting in a way he couldn't explain and decided to see what was going on. After that, the fishiness of the defendant's explanations of his actions warranted further investigation. And beyond that, I've already stated my grounds."
III. DISCUSSION
Sanchez contends the trial court erred by refusing to suppress evidence found in his car on the night in question because the otherwise lawful probation search was the fruit of an unlawful detention. A. Issues Presented
"The federal Constitution's Fourth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable seizures. Our state Constitution includes a similar prohibition. [Citation.]" (People v. Cells (2004) 33 Cal.4th 667, 673 (Cells).)
Detentions are "seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police 'if there is an articulable suspicion that a person has committed or is about to commit a crime.'" (People v. Hughes (2002) 27 Cal.4th 287, 327 (Hughes).) "Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
There is no dispute on appeal that a detention did occur at some point during the August 23 incident. However, the parties strongly disagree about when, during the incident, Sanchez was detained. Sanchez takes the position that he was detained from the moment Lombardi made contact with him, but also argues that, regardless when the detention occurred, it was not supported by reasonable suspicion. The People contend that the initial contact between Lombardi and Sanchez was consensual and that a detention did not occur until Lombardi ran Sanchez's name through dispatch. The People also argue that, regardless when the detention occurred, it was supported by reasonable suspicion. B. Standard of Review
Our standard of review of a ruling on a motion to suppress is well settled. "[W]e defer to the trial court's express and implied factual findings that are supported by substantial evidence. We then independently apply constitutional principles to the trial court's factual findings to determine the legality of the search or seizure. [Citations.]" (People v. Stier (2008) 168 Cal.App.4th 21, 26.)
In the present case, the trial court found that Sanchez was detained, although it did not make an express finding as to when that detention occurred. Nor did it make any factual findings which might arguably fix that time. However, the trial court did ultimately deny the motion to suppress. Therefore, "[w]e must accept factual inferences in favor of the trial court's ruling" and "the version of the events most favorable to the People, to the extent the record supports them." (People v. Zamudio (2008) 43 Cal.4th 327, 342.) C. The Detention
Contrary to Sanchez's contention on appeal, the facts relevant to this appeal are disputed. Lombardi and Sanchez provided conflicting testimony on several material issues, including, for example, whether Lombardi ordered Sanchez to stop and talk to him. On appeal, we resolve such factual conflicts in favor of the judgment.
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Sanchez divides the August 23 interaction into three segments; the initial contact, the talk of a trespass, and the report of Sanchez's personal information to dispatch. Sanchez then urges us to fix the time when the detention occurred as early as we are willing.
"'A seizure occurs whenever a police officer "by means of physical force or show of authority" restrains the liberty of a person to walk away.' [Citations.]" (Celis, supra, 33 Cal.4th at p. 673.) "'"'[A] person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " ' [Citation.]" (Hughes, supra, 27 Cal.4th at p. 328.) "'[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.]" (In re Manuel G., supra, 16 Cal.4th at p. 821.)
"Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled. [Citations.] The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]" (In re Manuel G., supra, 16 Cal.4th at p. 821.)
Applying these principles, we find that Sanchez was not detained when Lombardi first approached him and asked him what he was doing in the Development. At that point in the encounter, Lombardi did not use physical force or a show of authority to restrain Sanchez's liberty in any way. The evidence shows that Lombardi simply approached a man he did not recognize and used a casual tone to inquire what he was doing in the Development. Lombardi was not accompanied by other officers and did not display a weapon. Nor did he touch Sanchez or use a tone that compelled Sanchez to answer.
Despite these circumstances, Sanchez contends a detention occurred at the outset of the interaction because three factors combined to make the situation so "intimidating" that a reasonable person would not have felt free to leave. The three allegedly intimidating circumstances were (1) the use of a spotlight; (2) Lombardi's questioning; and (3) Lombardi's "rapid approach."
First, the evidence before us does not establish or even suggest that the spotlight was used for purposes of intimidation. The encounter occurred late at night in a residential area and the spotlight enabled both the officer and Sanchez to see better. Furthermore, relevant authority holds that the use of a spotlight may cause a reasonable person to believe he is "the object of official scrutiny." However, "such directed scrutiny does not amount to a detention." (People v. Perez (1989) 211 Cal.App.3d 1492, 1496; People v. Franklin (1987) 192 Cal.App.3d 935, 940.)
Second, Sanchez fails to explain why he believes the officer's initial inquiry was intimidating. "[A] detention does not occur when a police officer merely approaches an individual on the street and asks a few questions." (In re Manual G., supra, 16 Cal.4th at p. 821; see also Hughes, supra, 27 Cal.4th at p. 328 [officer does not effectuate a seizure by approaching person on the street "'by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen'"].) Here, Lombardi approached an individual he did not recognize and used a "casual" tone to ask him what he was doing in the Development.
Finally, Sanchez identifies Lombardi's allegedly "rapid approach" as an additional circumstance which combined with the spotlight and the officer's questions created an atmosphere of intimidation from which a reasonable person would not have felt free to leave. To support this theory, Sanchez directs our attention to People v. Garry (2007) 156 Cal.App.4th 1100 (Garry), a case he believes is "materially indistinguishable" from his case.
In Garry, supra, 156 Cal.App.4th 1100, an officer was patrolling a high-crime neighborhood at 11:23 p.m. when he noticed the defendant standing on a street corner next to a parked car. The officer parked his vehicle approximately 35 feet away and observed the suspect for approximately five to eight seconds, then illuminated the defendant with the patrol car spotlight, exited his vehicle and walked "'briskly'" toward the defendant. By the officer's own testimony, he reached the defendant "'two and a half, three seconds' after leaving his patrol car, during which time defendant referred to living 'right there' and took three or four steps back." The officer then asked if the defendant was on probation, the defendant said he was, at which point the officer grabbed him. The defendant actively resisted and the officer then restrained and arrested the defendant. (Id. at pp. 1103-1104.)
The Garry defendant moved to suppress evidence discovered on his person during a search incident to his arrest, which the trial court denied. (Garry, supra, 156 Cal.App.4th at p. 1105.) The trial court found that a consensual contact occurred when the officer "'simply approached'" the defendant and started to speak with him and that the officer had a legal basis to detain the defendant once he admitted that he was on probation. (Ibid.) On appeal, this court reversed, finding that the only conclusion to be drawn from the undisputed evidence was that the officer's actions "constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was '"not free to decline [his] requests or otherwise terminate the encounter."' [Citation.]" (Id. at p. 1112.)
As we explained in Garry, there were several circumstances consistent with a finding that a detention did not occur until the officer learned about the defendant's parole status. (Garry, supra, 156 Cal.App.4th at p. 1111.) For example, the officer parked 35 feet away from the defendant, which was a "considerable distance," there were no other officers with him, he did not use his emergency lights or draw a weapon, he did not make a verbal command, he went to the defendant rather than asking him to come to him, and he did not prevent the defendant from leaving or otherwise touch him prior to learning that the defendant was on parole. (Ibid.)
However, the officer's own testimony also established that his conduct was both aggressive and intimidating. (Garry, supra, 156 Cal.App.4th at p. 1111.) That conduct included (1) bathing the defendant in a spotlight after observing him for only five to eight seconds; (2) walking so "'briskly'" that he traveled 35 feet in "'two and one-half to three seconds'"; (3) disregarding the defendant's statement that he was standing outside his own home; and (4) immediately questioning the defendant's legal status. (Id. at pp. 1111-1112.) Indeed, in light of the officer's own testimony, we were compelled to reject the trial court's finding that the officer "'simply approached'" the defendant and "'started to speak'" because that finding was not supported by substantial evidence. (Id. at p. 1112.) The officer's own testimony established that he "all but ran directly at [the suspect], covering 35 feet in just two and one-half to three seconds, asking defendant about his legal status as he did so." (Ibid.)
Garry does not support Sanchez's theory that he was detained when Lombardi first contacted him in this case. In Garry, undisputed evidence of police intimidation overrode other circumstances which might otherwise have supported the trial court's finding that a detention did not occur when the officer in that case first made contact with the suspect. In the present case, by contrast, Officer Lombardi's testimony does not compel or even support a finding of police intimidation. Although Lombardi used a spotlight, he did so only after Sanchez noticed him and began to walk away. Furthermore, Lombardi simply walked toward Sanchez; he did not all but run at the defendant. Finally, Lombardi's first question was not about Sanchez's legal status. Rather, he used a casual tone to inquire what Sanchez was doing.
Thus, the evidence in this case supports the conclusion that Lombardi did not act aggressively or employ an intimidating manner. This circumstance, like the other circumstances discussed above, supports our conclusion that the initial encounter between Lombardi and Sanchez was consensual. Therefore, no reasonable suspicion was required on the part of the officer at that point in time.
Sanchez next contends that he was detained when Lombardi made an "implied accusation" that he was violating the law by trespassing. Citing Wilson v. Superior Court (1983) 34 Cal.3d 777, 790 (Wilson), Sanchez suggests that an accusation of criminal activity is "dispositive on the question of detention . . . ." Again we find that Sanchez is relying on a case that does not advance his cause.
The issue in Wilson, supra, 34 Cal.3d at page 790, was whether the defendant was detained when a police detective searched his attache case at the airport. The court found that the detective did not detain the defendant "merely by approaching him, identifying himself as a police officer and asking if he might have a minute of his time." (Ibid.) However, a detention did occur when the detective advised the defendant that "he was conducting a narcotics investigation and that he 'had received information that [the defendant] would be arriving today from Florida carrying a lot of drugs.'" (Ibid., italics omitted.) At that point, the court reasoned, an ordinary citizen would not feel at liberty simply to walk away from the officer. (Id. at pp. 790-791.)
Wilson does not support Sanchez's broad notion that an officer's accusation of criminal activity is "dispositive" on the question of detention. Rather, that case expressly confirms that "'all of the circumstances surrounding the incident'" must be considered in order to determine whether a reasonable person would believe that he was free to leave. (Wilson, supra, 34 Cal.3d at p. 790.) Furthermore, we believe there is a material difference between accusing an individual of having illegal drugs in his possession and advising a citizen that he may be trespassing. Indeed, a reasonable person in the later situation might interpret the officer's comment as an invitation to leave. Finally, and in any event, officer Lombardi expressly testified that he did not accuse Sanchez of trespassing.
Sanchez contends that "he was undoubtedly detained when the officer asked him whether he was on probation or parole and then radioed dispatch to confirm." The People concede that, once Lombardi ran Sanchez's name through dispatch, a reasonable person in Sanchez's position would not have felt free to leave. We agree that the totality of the circumstances support the conclusion that Sanchez was detained when Lombardi ran his name through dispatch. D. Reasonable Suspicion
"'A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' [Citation.]" (In re Raymond C. (2008) 45 Cal.4th 303, 307.)
In the present case, when Lombardi detained Sanchez, he was aware of the following facts: Sanchez was walking in a high crime housing development late at night. When Sanchez spotted Lombardi in a marked police car, he "immediately" turned and walked the other way. Sanchez did not live in the Development and could not produce any identification. He said he was looking for a wallet that he had lost earlier that day, but he also told Lombardi that his identification was in his wallet in his car, which was parked a short distance away. Furthermore Sanchez did not have a flashlight and he was not looking at the ground when the officer first noticed him.
Sanchez acknowledges that the totality of these circumstances must be considered, but then isolates and attempts to separately discredit each circumstance in this case. Thus, for example, Sanchez concedes that "the high crime area" factor may be relevant, but complains that it cannot be the sole basis for establishing reasonable suspicion. (Citing People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.) Suffice it to say, we are not persuaded by Sanchez's piecemeal approach. When considered in their totality, the facts and circumstances gave Lombardi a reasonable suspicion to detain Sanchez while his name was run through dispatch.
IV. DISPOSITION
The judgment is affirmed.
Haerle, Acting P.J.
We concur:
Lambden, J.
Richman, J.